Human rights above all

How much help does a society need to be bigoted, prejudiced, biased and cruel? Not much, going by our track record. But last week, the Supreme Court of India provided enormous help to bigots and hate-mongers.

It reinstated Section 377 of the Indian Penal Code, which had been struck down by the Delhi High Court in a detailed and lauded judgment in 2009. Section 377 in effect criminalises homosexuality by making ‘unnatural sex’ against the law. This section of the IPC also makes a crime out of much of what happens in bedrooms, not just between men but also between men and women.

Passing the buck? The Supreme Court overturned and neatly passed the bundle to Parliament, condescendingly acknowledging that the law could be repealed there if politicians so desired

In its essence though, the highest court of the land has made homosexuals, and by extension, all those who belong to the LGBT community prey to police harassment and legal action. The 2009 judgment made it clear that Section 377 was against human rights and that ‘Constitutional morality’ was more important than ‘public morality’. This is a crucial point, which the Supreme Court overturned and then neatly passed the bundle to Parliament, condescendingly acknowledging that the law could be repealed there if politicians so desired. But is not the Supreme Court the last upholder of constitutional morality? Is it fair for it to dismiss everyone who is not heterosexual to a ‘minuscule’ fraction which does not have to be protected? 

The most basic private and fundamental right a person can have is who to love. And the apex court has decided that love has to bow down — legally — to social norms or traditional practices. If homosexuals have to be tied down to someone else’s idea of who can love whom, then why protest against khap panchayats for deciding to kill young men and women when they fall in love with someone from the same village? The khap panchayats just sound like the Supreme Court in this case, if your honours will forgive me.

And as Baba Ramdev’s argument that the next step from homosexuality is bestiality — now here’s a very good reason to lock up someone who does not understand logic, and throw away the key. And similar action needs to be taken with all such arguments about homosexuality going against Indian culture — as brought up by the BJP — or against religion, as brought up by all those Hindu, Muslim and Christian bodies which petitioned the Supreme Court in the first place.

There is enough scientific evidence to explain why a proportion of the population is homosexual. There is enough evidence to prove that other animals also show similar traits. But all that is not even germane to this argument. What we have here is official torture of those who do not follow some conservative idea of how people should behave premised on nothing more than hatred and lack of compassion. We have broken those ideas when it came to caste, race and gender for instance. And we need to discard those ideas when it comes to homosexuals now.

There is a section of human society which thrives on the hatred and demonisation of the other. Nazi Germany terrorised homosexuals. After al-Qaeda’s 9/11 attacks on New York, an evangelical pastor blamed homosexuality. There is no limit to how low such hateful ideas can and will stoop. Unfortunately, religion often plays a role in justifying the withholding of human rights and that is why we need a secular state.

There is the other issue of the fight against HIV and how that will be affected by the re-imposition of Section 377. Just as India’s figures in the fight with this disease were looking heartening, we have this enormous setback. A lot of hard work done in this sector may be negated, as people will be afraid to seek medical help for fear of having Section 377 slapped on them.

But to my mind, the idea of human rights comes first and that is why Section 377 has to go. The onus lies with the politicians and particularly with the Congress party, which has spoken out strongly against the Supreme Court judgment. Now is the time to prove that we care about ‘minuscule’ fractions as much as large majorities. Or we mean nothing as a democracy. 

Ranjona Banerji is a senior journalist. You can follow her on twitter @ranjona

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